Judge orders city to set fracking vote

The Loveland City Council has between 60 and 150 days to hold a special election for a fracking moratorium

Posted:
03/27/2014 05:55:45 PM MDT

With an order handed down Thursday from the 8th Judicial District Court, the clock is now ticking for the Loveland City Council to schedule a special election for a fracking moratorium ballot initiative.

The six-page ruling from District Court Judge Daniel Kaup follows his Feb. 11 order that upheld the sufficiency of petitions for a ballot initiative submitted by the advocacy group Protect Our Loveland. Because plaintiff Larry Sarner promptly filed an appeal to that decision, the city's attorneys went back to the judge for a clarification.

The question at hand related to "final determination of petition sufficiency." Attorneys for Protect Our Loveland argued that the petitions were cleared to move onto the ballot, while Sarner's attorneys argued that final determination will not occur until the completion of the appeals process.

In the order, Kaup rejected the position that the electorate would have to wait to vote on an initiative while an appeal is pursued.

"This interpretation would potentially delay elections on municipal initiatives for a significant period of time, placing an unreasonable burden on the people's constitutional initiative right," Kaup wrote.

The judge concluded that the Feb. 11 order marked the "final determination of petition sufficiency."

Deputy City Attorney Judy Schmidt said that because Kaup ruled that Thursday was the effective date of the finding and order, that triggers the time period by which the council must take action on the initiative.

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"Absent of a stay by the court of appeals, I think the initiative proceeds to election based on this order," Schmidt said.

Under state law, the City Council has not less than 60 and not more than 150 days in which to hold an election once there's a final determination of petition sufficiency.

That would put a special election sometime between late May and late August.

"Our expectation is that the city complies with the order and that they do the right thing and go forward and schedule an election within the time frame. Anything else would be effectively taking away people's right to vote on the issue," said Lauren Hammond, a student attorney at the University of Denver Environmental Law Clinic, which represents Protect Our Loveland.

The City Council could also choose to adopt the proposed ordinance, which asks for a two-year moratorium on hydraulic fracturing, or fracking, within city limits.

If councilors went that route, they'd have 20 days from Thursday to do so, though past efforts to adopt a moratorium have all failed. Last year, council members voted to create a regulatory system for oil and gas production within Loveland.

In a March 14 brief, City Attorney John Duval raised the new issue that because Loveland is a home-rule municipality, the council could set an election deadline that's different from the deadline set by state statutes. Duval, who was grilled about the brief by City Council members last week, said he'd wanted to make the judge aware of the possibility that the council could pass an ordinance and apply it retoactively to the fracking moratorium ballot initiative.

The court does not have the jurisdiction to address that issue, Kaup ruled, calling the city's brief "essentially a request for an advisory opinion."

"If the city of Loveland does pass a new ordinance purporting to affect the election on POL's initiative, then any challenges or issues arising from that development must be raised in a separate and distinct civil action," he wrote.

Kaup concluded that the 8th Judicial District Court no longer has jurisdiction over the case and any further issues, including the possibility of a stay of execution during the appeal, will be addressed and determined by the Court of Appeals.

"Mr. Sarner will be considering when he will be filing his appeal to Judge Kaup's ruling," said paralegal Luci Stremme from Denver-based Holsinger Law, which represents Sarner.